By: Carolyn Dubay, Editorial Assistant and Reporter, International Judicial Monitor

The Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, simply called the ECCC or the Khmer Rouge Tribunal, is one of the latest institutions in the ever-evolving world of international criminal justice designed to bring accountability and justice to the perpetrators of mass atrocities committed during times of armed conflict.

It was amidst the global movement to create international criminal institutions that calls emerged for a tribunal to try former members of Cambodia’s Khmer Rouge regime, which was responsible for the murder and death of more than 1.7 million Cambodians between 1975 and 1979, roughly 20% of the population. The effort to bring justice to Cambodian victims differed significantly from other efforts to establish war crimes tribunals, because so many years had passed before the political situation, both internally and internationally, could sustain such a tribunal. More than ten years after the fall of the Khmer Rouge, relative calm and stability emerged after the negotiation of the Paris Peace Accords, the adoption of the 1993 Constitution and the formation of a new coalition government. Another decade passed, however, before a tribunal could be established amidst political negotiations and funding shortages.

Finally, in July 2007, thirty years after the atrocities in Cambodia occurred, the co-prosecutors selected for the Tribunal formally initiated it by filing their first introductory submission in the office of the co-investigating judges, requesting the investigation of “twenty-five distinct factual situations of murder, torture, forcible transfer, unlawful detention, forced labor and religious, political and ethnic persecution” that prosecutors believed constituted crimes against humanity, genocide, and breaches of the Geneva Conventions. The co-prosecutors further requested that the judges charge five suspects who, as senior Khmer Rouge leaders, bore responsibility for these crimes. The requests to charge these individuals were supported by the submission of more than 14,000 pages of documents that included 350 witness statements, thousands of pages of Democratic Kampuchea-era documentation, and the locations of over forty undisturbed mass graves. The first trial of Kaing Guek Eav, known by the alias Duch, who served as commandant of the Khmer Rouge’s notorious Tuol Sleng prison, began in March 2009 and continues as of September 2009.

Beyond the extraordinary length of time between the commission of the Khmer Rouge atrocities and the start of the first trial, the Khmer Rouge Tribunal is also distinguished by its hybrid domestic-international nature. The movement towards hybridized international criminal tribunals emerged in the late 1990s in response to the scale, duration, and expense of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, which led policymakers to seek smaller and less costly alternatives to pursue the goals of transitional and restorative justice. In a number of countries- Kosovo, East Timor, Sierra Leone, and Bosnia- hybrid arrangements were established to try individuals for violations of international and sometimes domestic law. In addition to combining national and international staff, including judges and prosecutors, these hybrids are located directly in the country that experienced the atrocities, rather than miles away in a location inaccessible to the population. The hope for hybrid tribunals is that in the right circumstances, such tribunals located within post-conflict societies may be viewed as more legitimate by domestic audiences, have greater potential for domestic capacity-building by involving domestic judges and practitioners directly in the work of the court, and may be better able to demonstrate the importance of accountability and justice to local populations. Whether the Khmer Rouge tribunal will have these desired results remains to be seen after the trials conclude in the coming years. In the meantime, the prospects do not seem particularly good, although not without hope.

Looking to the work of scholar Jane Stromseth on post-conflict justice, she has suggested several factors to consider when analyzing whether a particular type of proceeding will ultimately serve to promote accountability and the rule of law: (1) the effective disempowerment of key perpetrators who threaten stability and undermine public confidence in the rule of law; (2) the character of the accountability proceedings pursued, particularly whether they demonstrate credibly that previous patterns of abuse and impunity are rejected and that justice can be fair; and (3) the extent to which systematic and meaningful efforts at domestic capacity-building are included as part of the accountability process. Overall, these factors, as applied to the domestic political and legal situation in Cambodia, suggest that the Khmer Rouge Tribunal may not ultimately move Cambodia significantly closer to achieving an independent and non-corrupt judiciary.

First, the tremendous control that Prime Minister Hun Sen has exerted over the composition of Cambodian judges who sit on the tribunal, and the tribunal procedures (which give the domestic judges subject to his influence the right to control who is indicted) threaten the prospects for long-term confidence in the rule of law. Given the current political concerns and human rights trends in Cambodia, including the presence of former Khmer Rouge officials in the highest levels of government, ultimate accountability may be out of reach.

Second, whether the hybrid nature of the tribunal will demonstrate credibly that previous patterns of abuse and impunity are rejected (either under the Khmer Rouge or the Hun Sen government) seems somewhat dubious. For example, because the Cambodian judges effectively control the verdicts in the Khmer Rouge prosecutions, their selection and qualifications have become the subject of intense international scrutiny and concern. The independence of the Cambodian judges on the tribunal from political influence is a significant problem. When the Cambodian judges were appointed in mid-2006 to the tribunal, there was widespread criticism that some of them may have previously allowed political influence to determine the outcome of particular cases. Even the location of the tribunal, housed in a facility outside of Phnom Penh that originally served as the headquarters of the Cambodian military, bodes ominously for the perception of the tribunal’s independence and fairness.

The scrutiny over the domestic judges of the tribunal has in turn exposed the severe challenges facing the judiciary in Cambodia as it struggles to recover from decades of financial and professional neglect, corruption and political interference. The weakness of the Cambodian judiciary has its roots in the atrocities of the Khmer Rouge. During the Khmer Rouge rule, Cambodia’s government institutions crumbled. Amnesty International has reported that when the Khmer Rouge fell in 1979, there were only 10 qualified lawyers left in the country. Ultimately, the legal system that was established was based on the Vietnamese model, itself influenced by the Soviet Union’s judicial system. This system promoted high conviction rates and no respect for basic criminal defendant rights, such as legal representation. Widespread torture and political persecution, and the use of confessions as sufficient evidence for conviction, were common. The level of education and training for Cambodia’s judiciary also remained extremely low.

The World Bank has reported that of the 120 judges who formed the Cambodian judiciary 10 years after the Paris Peace Accords, only a handful had proper legal qualifications and only one was a woman. A 2002 Amnesty International Report further noted that “[p]oor facilities, low salaries, executive interference, lack of education and training, and weak and poorly enforced legislation combine to produce a judicial system in which people have no confidence, and which daily fails in its duties and responsibilities.” As a result of these deficiencies, the public continues to have an exceedingly low perception of the judiciary and it is commonly understood among the Cambodian population that cases are disposed of on the basis of considerations outside the law or merits, such as corruption or political interference.

A close look at the state of the judiciary and the political situation in Cambodia, suggests that until the fundamental problems of corruption and the lack of judicial independence are addressed, the integrity of the tribunal’s proceedings remains at risk, and worse, public perception of the fairness of the tribunal has the potential to undermine its goal of providing accountability and justice to the survivors of the Khmer Rouge’s regime. This risk highlights the problems with applying the hybrid tribunal model in situations where the political leadership is committed to rule of law reform in name only, and democratic constraints on political power and accountability are virtually non-existent.

Problems with Cambodia’s judiciary also persist despite the significant reforms of the last several years. Transparency International’s Global Corruption Report for 2007 found that judicial officers in Cambodia remain among the least trusted government officials. Complicated trials routinely last less than 10 minutes and an estimated 50 percent of cases go forward without an attorney. Judicial opinions are not documented transparently, and judges rarely explain their reasoning or note it in the court record, although it is required by law.

The initial prospects for the qualifications, ethics and independence of the Cambodian judges on the Khmer Rouge Tribunal seem dim. For example, critics claim that some of the judges appointed to the tribunal have had no formal legal education at all. Louise Arbour, UN High Commissioner for Human Rights, has complained that judges appointed to the tribunal hold only the equivalent of a high school certificate, while others received legal training in Soviet-bloc countries in the 1980s during the communist Vietnamese backed government.

Along with the qualifications of the Cambodian judges, corruption at the tribunal remains a significant concern. An independent audit in January 2007 investigated allegations that UN funds for the tribunal were being siphoned off as kickbacks. In September 2007, the tribunal also received serious criticism for its personnel policies and mismanagement of international funds as allegations of corruption and unethical hiring practices emerged in the international media and in the reports of international organizations monitoring the tribunal.

As a final measure of potential success of the tribunal, and beyond the state of political affairs and the judiciary in Cambodia, Professor Stromseth further suggests consideration of the extent to which domestic capacity-building measures are embedded in the process of establishing the tribunal. For example, hybrid tribunals with strong domestic participation and outreach are more likely to leave a tangible legacy. From this perspective, there is good news. According to the official website of the Khmer Rouge Tribunal (http://www.eccc.gov.kh/english/) as of August 26, 2009, approximately 20,250 visitors had attended the Duch trial since it commenced on March 30, 2009. Moreover, significant efforts have been made by the international community to invest in rule of law reforms in Cambodia with positive results.

Overall, therefore, while the continuing political situation in Cambodia poses significant obstacles to long-term rule of law reform, tangible effects of the presence of the Khmer Rouge Tribunal in terms of domestic and international focus on accountability proceedings and investment in reforming the justice sector are positive.